Positive Test Comp Denial?

Are there states that will allow the employer or carrier to deny comp in cases where the post accident drug screen is positive? I learned last week, talking to a WC Commission attorney, that the only way it can be denied is for the employer to PROVE that drug use was the proximate cause of the accident. And the attorney said, "...And, you'll never be able to prove that."

Comments

  • 11 Comments sorted by Votes Date Added
  • The Ohio Bureau of Workers' Compensation states:

    "Effective October 13, 2004, Section 4123.54 of the Ohio Revised Code requires notice of rebuttable presumption. Rebuttable presumption means that an employee may dispute or prove untrue the presumption (or belief) that alcohol or a controlled substance not prescribed by the employee's physician is the proximate cause (main reason) of the work-related injury.

    The burden of proof is on the employee to prove that the presence of alcohol or a controlled substance was not the proximate cause of the work-related injury. An employee who tests positive or refuses to submit to chemical testing may be disqualified for compensation and benefits under thw Workers' Compensation Act."

    This notice must be posted throughout our premises.

    We have not had an employee test positive post-accident yet to see if the above holds true.
  • I would think that if an ee was positive for a post accident D/S that you have your proof that it was the proximate cause. I am not a W/C expert, we have a separate Risk Management dept., but I know that if there is an accident resulting in an injury, when we send the ee to the approved medical provider for treatment, we ask for a D/S to be performed at the time of treatment, or in cases where the ee may be under the influence of alcohol, make them take a BAT. How can someone argue if they are found to be high on something that did not impair their judgement?

    If I was faced with scenario, I would deny the claim, and make the ee file a Petition for Benefits, make them go through the greivnace process, etc. In my opinion, it would be hard for them to prove that the root of the compensable accident was not causally related to the drug/alcohol abuse. Take away any other argument by showing the equipment was not faulty, etc. and I would say that you have all the proof you need.
  • Current MS law was correctly stated by the attorney. There have been successful defenses based on drug use but it is not an easy task to show that the cause was the employee being under the infuence.
    Peyton Irby
    Editor, Mississippi Employment Law Letter
    Watkins Ludlam Winter & Stennis, P.A.
    (601) 949-4810
    [email]pirby@watkinsludlam.com[/email]
  • From the DOL

    KANSAS Workers' Compensation State law denies compensation when an injury, disability or death was contributed to by the employee's use or consumption of alcohol or any drugs, including but not limited to, any drugs or medications which are available to the public without a prescription from a health care provider, prescription drugs or medications, any form or type of narcotic drugs, marijuana, stimulants, depressants or hallucinogens. It is conclusively presumed that the employee was impaired due to alcohol if it is shown that at the time of the injury that the employee had an alcohol concentration of .04 or more. An employee's refusal to submit to a chemical test is not admissible evidence to prove impairment unless there was probable cause to believe that the employee used, possessed or was impaired by a drug or alcohol while working. Kan. Stat. Ann. § 44-501(Supp. 1997). Not Available

    Also from the DOL
    MISSISSIPPI Workers' Compensation Premium Reduction Program State law provides for a five percent reduction in workers' compensation premiums to employers who establish a drug-free workplace program. In order to qualify for the reduction, employers must have a written policy statement, conduct drug and alcohol testing, maintain a resource list of EAP providers, provide employee education and supervisor training, and maintain confidentiality standards. MS Code Ann. 71-3-201 to 225. (1997). Workers' Compensation State law provides that no compensation will be awarded if the employee's intoxication is the proximate cause of his or her injury. Miss. Code § 71-3-7 (1993). Not Available



  • I can see the controversy in this. It's actually been going on as long as I can remember. Devil's advocates will argue that an ee who smoked pot 3 days ago will test positive today after his/her accident but was surely not under he influence.
  • [font size="1" color="#FF0000"]LAST EDITED ON 02-23-05 AT 08:03AM (CST)[/font][br][br]But a pharmacologist will testify that he is indeed under the influence, which is what the test calculates. Being under the influence means having a certain level of intoxicant in your system at a certain point in time as measured by scientific tests.

    (Edit) And talk about profiling! If I were to profile the typical marijuana smoker here I would probably say it's going to be a male temp who has been here less than two weeks and is between the ages of 22 and 28. Would that match your profile? The person in this situation is a 64 year old woman who, prior to termination this week, had been here over five years.
  • Nope, I'm not buying it. The only exception to this would be alcohol due to the rate at which it is metabolized. In other words, you will not blow anything 3 days after a getting drunk. At best, you're going to get a pharmacologist to testify that there are detectable trace amounts of THC in their system. The threshold amounts are established to distinguish from possible 2nd hand or casual contact versus active ingestion. Any attorney would immediately object to testimony from any pharmacologist who tries to pinpoint the exact time frame at which the person was under the influence of marijuana.

    As far as profiling, you would be amazed at the demographics of my positives. I can tell you this, no one in our hispanic workforce (80% +) has ever tested positive in post accident or pre-employment during my tenure (that's approximately 300 screens). How about them apples?

    The young people are no longer into pot these days, they seem to gravitate towards stuff that I just don't get like "Special K" (a veterinary tranquilizer given to cats during spaying) which esentially turns them into paralyzed zombies for a few hours. That sounds like a lot of fun to me! So much for the giggles, munchies then a nap, huh?
  • A symantical argument. No drug policy has wording that calls for termination only if 'under the influence'. That's a rather hollow term. People are terminated for testing positive, period, not for reaching a threshold. If they do not reach the chemical threshold established by the experts, they are not reported out as positive. Our job is not to pharmacologically disect tests and their results and what might or might not be under the influence or play doctor. We pay others to do those things.


  • Don: Thanks for the education!

    Over the last 6 years, we have nailed 3 W/C cases and have denied all three medical coverage beyond the initial treatment, which we had to prior approve in order to get he Post accident Drug Test accomplished. I guess we are lucky that the ees did not have the education to get an attorney and take us to court. One did in Alabama,but we won. The ones in Mississippi have not taken us to court. I believe now that I know what you and now Payton have stated, I will continue to w/h medical attention beyond the drug and alcohol positive test resuts and wait for the uneducated to come at us from a legal perspective. Most have cried for us not to reveal the positive result to their family members, which is confidential. That is an easy one, and we always agreed not to tell anyone, unless there is a signed release provided by the x-employee for the release!

    Have a Blessed day and a better one tomorrow!

    PORK
  • Pork: I hope you are not saying you will withhold medical treatment until after the drug screen results have been reported to you. I'm sure I misread you. According to the Commission's attorney, we will eat all the medical costs associated with the accident regardless of the positive. And those will be significant. I have not heard, however, if comp will continue to pay her 66.66% of what would have been her wage. If that's the case, she has just exactly what she had hoped for.
  • Don: Yes, we have withheld medical attention after a positive drug and alcohol test. We have also terminated that person's employment. None, have won to date. Our Alabama case went all the way to court, and we won there, the x-ee lost an arm and ability to drive and make a living, he wanted $375,000 to settle and we and our carrier said no deal/take it to court. He did and he lost. We were not required to prove anything except the validity of the documentation and proof that he was the individual from whom the blood was taken and the blood test was valid and accurate. The facts proved he was under the influence of alcohol beyond the acceptable limits for the state of Alabama. Thus he caused his own vehicle accident. We had to defend the mechanical abilities of the truck and trailer. We did that with expert testimony and company records on the condition of the rig.

    When I wrote withheld medical attention, I meant we did not accept responsibility for the cost of treatment. The medical Industry took care of the individual, we simply refused to pay for the medical attention provided then and any attention required to date.

    PORK
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